Confirmed: NSA reform is more like business as usual

posted at 12:41 pm on January 17, 2014 by Ed Morrissey

The long-awaited presidential address on proposed NSA reforms didn’t quite meet the raised expectations after several months of debate over the reach of government into domestic communications.  To paraphrase Shakespeare, it was full of muted sound and absent fury, and meant mostly nothing. As predicted by Michael Hayden and me earlier, the speech offered few real points of change — and Obama insisted that the phone metadata collection would continue:

Brian Fung at the Washington Post points out what the reform doesn’t cover:

What don’t these reforms cover?

These reforms are narrowly targeted at the NSA’s phone metadata program under Section 215 of the Patriot Act. They don’t cover other programs the government carries out under Section 215, such as the reported scraping of financial information by the CIA. They don’t address the NSA’s counter-encryption activities or any geolocation information that the NSA may have or may be collecting. They also don’t address other programs like those conducted under Section 702 of the FISA Amendments Act, which is the authority under which PRISM operates. Some of the reforms, both on the telephony metadata surveillance and others that the President is announcing today, require an act of Congress, and given the Senate’s general support for the NSA throughout the controversy, it’s unclear how much traction these proposals will get. Much of the spying that happens internationally will also remain untouched.

Additional reforms aside from those affecting Section 215 include: Deciding not to spy on “dozens” of foreign heads of state or heads of government. Some protections applied to U.S. citizens abroad will also now be applied to foreign nationals. And companies will be able to make more disclosures about government data requests, including on National Security Letters, which will no longer be secret “indefinitely.”

The decision not to spy on foreign leaders will no doubt play well overseas, but even that came with a large caveat, emphasis mine:

The bottom line is that people around the world – regardless of their nationality – should know that the United States is not spying on ordinary people who don’t threaten our national security, and that we take their privacy concerns into account. This applies to foreign leaders as well. Given the understandable attention that this issue has received, I have made clear to the intelligence community that – unless there is a compelling national security purpose – we will not monitor the communications of heads of state and government of our close friends and allies. And I’ve instructed my national security team, as well as the intelligence community, to work with foreign counterparts to deepen our coordination and cooperation in ways that rebuild trust going forward.

It goes without saying that the category of “compelling national security purpose” is entirely subjective, and necessarily so. It’s still less than a categorical refusal to allow that kind of surveillance in the future. It’s a diplomatic bone, tossed with the understanding that our allies should applaud but not expect us to change too much about what we do.

Furthermore, one supposed change sounds either like no change at all, or raises serious questions about what was taking place before this speech, again emphasis mine:

First, I have approved a new presidential directive for our signals intelligence activities, at home and abroad. This guidance will strengthen executive branch oversight of our intelligence activities. It will ensure that we take into account our security requirements, but also our alliances; our trade and investment relationships, including the concerns of America’s companies; and our commitment to privacy and basic liberties. And we will review decisions about intelligence priorities and sensitive targets on an annual basis, so that our actions are regularly scrutinized by my senior national security team.

Did Obama mean to suggest that the national security team wasn’t performing these kinds of reviews at all before now? That’s what it sounds like, and even a pledge to perform this oversight on an annual basis seems pretty lax. Do new threats arise only on an annual basis? Shouldn’t this be a higher priority for Obama’s national-security team than just an annual report?

At least one vocal critic from Capitol Hill was left unimpressed. Senator Rand Paul (R-KY) issued this official statement shortly afterward:

“While I am encouraged the President is addressing the NSA spying program because of pressure from Congress and the American people, I am disappointed in the details. The Fourth Amendment requires an individualized warrant based on probable cause before the government can search phone records and e-mails. President Obama’s announced solution to the NSA spying controversy is the same unconstitutional program with a new configuration,” Sen. Paul said. “I intend to continue the fight to restore Americans rights through my Fourth Amendment Restoration Act and my legal challenge against the NSA. The American people should not expect the fox to guard the hen house.”

Less formally, Paul gave this reaction:

Paul said this to Wolf Blitzer in his response to the speech:

Obama wants these “reforms” to give Americans greater confidence,” as National Journal framed the speech. NJ’s James Oliphant was unimpressed by Obama’s plan and his call for confidence:

After Friday, keep in mind how the status quo has, or has not, been altered:

1) The phone metadata still exists.

2) It will be kept, at least in the short-term, by the government until Congress figures out what to do with it. (And don’t think the telecom lobby won’t play a role in that.)

3) It will be searched.

4) Searches will be approved by a court with a record of being friendly to the government, one without a new privacy advocate.

5) National Security Letters can still be issued by the FBI without a court order.

5) Much of this activity will remain secret.

The president made two major policy prescriptions. First, he called for the data to be housed somewhere other than within the government. Second, he said before the NSA can search the calling-record database, it should obtain judicial approval.

To the first, the president would not specify where the data will be ultimately stored. He wants the Justice Department and the intelligence community to come up with a proposal within 60 days. The administration is reluctant to force telecom providers to house the data, both because of logistical problems and because the industry wants nothing to do with it. Some have suggested creating a private consortium – but that will take time. And if it proves that there is no better place to keep the data, it well could remain with the U.S. government. (Sounds a little like GITMO.)

To the second of Obama’s measures, judicial oversight will come in the form of the Foreign Intelligence Surveillance Court, which critics say acts as a rubber-stamp for government surveillance requests, rather than by more independent-minded federal judges on other courts. The Wall Street Journal last year estimated the court rejects less than 1 percent of all requests, while the chief judge of court has maintained that it sends back up to 25 percent. Either way, the overwhelming majority of requests are granted unimpeded, particularly when the requests are time-sensitive.

Whether or not the data is “kept” by the government or a contractor is really immaterial. If government has access to it without advising consumers of a warrant for a search, then they essentially own it.  That kind of rhetorical sleight-of-hand characterizes the entire speech, as Chuck Todd noted in his reaction:

This is an attempt to distance himself from the collection without giving it up. We’ll see how well that works.

Update: Ouch:


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Rush is right. The flags behind Obama are indeed getting bigger and bigger. Or the rat-eared wonder just keeps getting smaller.

Happy Nomad on January 17, 2014 at 12:43 PM

“There is gambling going on in here”

Schadenfreude on January 17, 2014 at 12:44 PM

Ugggh. I just couldn’t watch the presser…

OmahaConservative on January 17, 2014 at 12:45 PM

Did anyone really expect Obama to actually lead?

sadatoni on January 17, 2014 at 12:48 PM

The government has and will use its surveillance selectively, against political opponents and critics. This is not conjecture, but proven with the IRS targeting of Tea-Party groups the latest in a long line of selective prosecution and profiling in the tradition of J. Edgar Hoover. As we learn the definition of a terrorist has been expanded to include anyone critical of the government, the NSA will continue to turn its eye of Sauron increasingly inward.

SHOW ME THE MAN, AND I”LL FIND YOU A CRIME.

In the age of digital everything, the government can selectively release information to make anyone fit the profile of a terrorist, child-molester, tax-evader or all three. If a crime can’t easily be found, a few records might be inserted into the digital profile to create one. Naturally there are safeguards to prevent such digital tampering with the evidence – just like the ones in place to keep a mid-level admin like Edward Snowden from walking off with thousands of records and documents.

roflmmfao

donabernathy on January 17, 2014 at 12:50 PM

Why does anyone still listen to this lying sack…?

… We are a 3rd world banana republic ruled by a lawless dictator and his thugs (Holder), and we just sat around and watched it happen.

It is Paradise, No…?

Seven Percent Solution on January 17, 2014 at 12:51 PM

This rank usurpation of everyone’s privacy, simply for the sake of snooping, has that same smarmy feel as a Peeping Tom going though a ladies lingerie drawers.

thatsafactjack on January 17, 2014 at 12:51 PM

Assange LIVE on CNN: “I think it’s embarrasing for a head of state to go on like that for forty minutes and say almost nothing.”

sentinelrules on January 17, 2014 at 12:52 PM

This is about protecting the NSA, not the American people. That’s why they are making changes to how data are stored–to keep it away from future Snowdens.

Christien on January 17, 2014 at 12:58 PM

I’ve heard this somewhere before.

whatcat on January 17, 2014 at 1:01 PM

Kudos to Rand Paul.

GaltBlvnAtty on January 17, 2014 at 1:01 PM

He is the president last time I checked…..he cant distance himself this

Oh I forgot… he already did this with the IRS agency

cmsinaz on January 17, 2014 at 1:05 PM

None of this is core to this President’s agenda or vision, so all he offered was the mere appearance of addressing surveillance, privacy, and security.

It’s little more than attempting to define the political optics – while hedging his bets against being blamed for any future terror attack.

Meanwhile, the funding Omnibus bill that supposedly ‘solves’ our budget challenge until the end of the current fiscal year, not only screws over our military retirees, but also codifies permissions for the IRS to not only continue, but expand its abusive and targeted persecution of Tea Party / Conservative 501c(4) organizations to silence their ability to advocate prior to the 2014 election.

We can add hypocrite to the other terms BHO is identified by – petulant, feckless, thin-skinned, narcissistic, filled with hubris, and a lying ideologue.

Assange LIVE on CNN: “I think it’s embarrasing for a head of state to go on like that for forty minutes and say almost nothing.”

One, it’s pretty much SOP for this President to drone on and say almost nothing if the topic isn’t central to his agenda.

Two, Assange has plenty in common with BHO, including their shared contempt towards the US.

Athos on January 17, 2014 at 1:08 PM

Ed,

I think you are missing a huge omission–namely, surveillance of foreign private citizens abroad. Remember The Golden Rule? The least of these…?

Nobody seems to care much about this, at least here in the U.S. Merkel and other leaders protested loudly specifically on behalf of their people, not themselves.

Christien on January 17, 2014 at 1:08 PM

Interesting comment from some Daily Kos Kid Kommenter:

“Are you sure you really want Congress to provide oversight?
Because that could lead to Obama’s impeachment, if they really started digging.”

whatcat on January 17, 2014 at 1:13 PM

and Obama insisted that the phone metadata collection would continue

Just wait until Hussain finds out about it in tomorrow’s newspaper, he’ll be so effing surprised :O

burrata on January 17, 2014 at 1:13 PM

What they desperately seem to want to avoid is an explanation.
 
verbaluce on January 2, 2014 at 12:01 PM

 
Wait, so telling them you supported their actions up to 2012 and that you personally desired their continued and similar expansions for another presidential term didn’t help, verbaluce?
 
rogerb on January 2, 2014 at 12:27 PM

rogerb on January 17, 2014 at 1:18 PM

Just wait until Hussain finds out about it in tomorrow’s newspaper, he’ll be so effing surprised :O
burrata on January 17, 2014 at 1:13 PM

He’ll write a strongly worded memo to the First Teleprompter.

whatcat on January 17, 2014 at 1:18 PM

Lies, lies and more lies.

albill on January 17, 2014 at 1:25 PM

Assange LIVE on CNN: “I think it’s embarrasing for a head of state to go on like that for forty minutes and say almost nothing.”

sentinelrules on January 17, 2014 at 12:52 PM

Well then, the State of the Union at the end of the month ought to be an embarrasment of nothingness. Personally, I think it is going to turn into an infomercial for Obamacare.

Happy Nomad on January 17, 2014 at 1:25 PM

He’ll write a strongly worded memo to the First Teleprompter.

whatcat on January 17, 2014 at 1:18 PM

It’s well established at this point that nobody is madder than Obama.

Happy Nomad on January 17, 2014 at 1:27 PM

Drudge had a posting about how TOTUS didn’t know about any of this NSA stuff.
I suppose it is … after all he is part Muslim and Taqiyya (Koran allows lying to CYA) … AND there is that Chicago reponse:
“I didn’t see nothin, I don’t know nothin’.

Missilengr on January 17, 2014 at 1:34 PM

He’ll write a strongly worded memo to the First Teleprompter.
…………….

whatcat on January 17, 2014 at 1:18 PM

……. blaming Bush

burrata on January 17, 2014 at 1:35 PM

Missilengr on January 17, 2014 at 1:34 PM

Minor correction: TOTUS is the prompter, not the man.

Christien on January 17, 2014 at 1:37 PM

So it was a bunch of baloney again.

forest on January 17, 2014 at 1:42 PM

I have such a hard time getting even remotely mad about any of this…

1) If this was Bush and not Obama, most on the right, except for the true blue civil libertarians, wouldn’t say a word.

2) I remember the days after 9/11 clearly; these reforms were put into place BECAUSE it was thought that they could have helped prevent 9/11. It frankly doesn’t matter if they’ve netted any bad guys yet, they could, one day, and that’s the point. Which is why Obama is doing the right thing and only playcating the Civil Libertarians.

Critic2029 on January 17, 2014 at 1:49 PM

It frankly doesn’t matter if they’ve netted any bad guys yet, they could, one day, and that’s the point.
Critic2029 on January 17, 2014 at 1:49 PM

Why exactly would the Nazi Snooping Agency do that ?

burrata on January 17, 2014 at 1:57 PM

Rush is right. The flags behind Obama are indeed getting bigger and bigger. Or the rat-eared wonder just keeps getting smaller.

Happy Nomad on January 17, 2014 at 12:43 PM

Before he leaves office … expect him to WRAP HIMSELF in the FLAG.
Guaranteed.

Missilengr on January 17, 2014 at 1:58 PM

Lying liar lies for forty minutes.

1. Give a stuttering speech where you lie about the problem at hand.
2. ???????
3. Problem solved, MSM fluffs.

jukin3 on January 17, 2014 at 2:00 PM

So apparently Obama has EVOLVED since 07 on this issue says the lsm

Nice lapdogs

cmsinaz on January 17, 2014 at 2:10 PM

I’m with Mr. Obama on this one.

Furthermore, I hope that Edward Snowden had a good and long life in the Soviet Union, so that he will come to understand just what a fool he was when he was young.

unclesmrgol on January 17, 2014 at 2:13 PM

So it was a bunch of baloney again.

forest on January 17, 2014 at 1:42 PM

Not really.

Bologna has substance and does provide sustenance.

O-babble, not so much.

Solaratov on January 17, 2014 at 3:40 PM

So we have a totalitarian surveillance regime. What do we have to show for it — other than the Tsarnaev brothers?

RightKlik on January 17, 2014 at 7:46 PM

…bullshit!

KOOLAID2 on January 17, 2014 at 10:20 PM